The Supreme Court will hear today the arguments in the application filed on behalf of suspended Deputy Electoral Commissioner, Afualo Darryl Mapu questioning the “chain of custody” and the alleged inconsistency in some of the prosecution evidence presented before the court.
The bench trial before Tologata Leilani Tuala-Warren for suspended Electoral Commission staff Afualo Darryl Mapu and Marie Fanueli started last week.
Prosecuting is Lupematasila Iliganoa Atoa and the defense lawyer for Afualo is Tofilau Leone Su’a-Mailo while Fanueli is represented by Aumua Ming Leung Wai.
The pair are jointly charged with six counts of drug-related offenses and possession of illegal weapons, in relation to a police raid at Nu’ufou on 28 December 2021.
Last week, Su’a-Mailo filed a “no case” motion citing that if the prosecution fails to adduce any evidence to prove each and every element of the offense then the court must acquit the accused.
The application says Defence points out that before the court can move on to determine the elements of the offense, the court must first be satisfied that the substances found in the defendant’s pants and the pipes found on the table are narcotics and a utensil in terms of the Narcotics Act 1967 and the motion cited several case laws to support its application.
“The issue with the chain of custody in relation to the crystal-like substances is that there are no proper documentation of the handover and no record of these handovers recorded in any of the police officers’ reports made for the purposes of this trial.
“That unlike the chain of custody of the firearms and ammunition, there are proper documentation which show the handover of these from one police personnel.”
Su’a-Mailo outlines a number of alleged inconsistencies in the number of packets cited by Police witnesses and there was no evidence offered by the prosecution to explain this discrepancy.
Furthermore the alleged inconsistency with the contents of the packets” as the evidence of the witnesses who were at the raid, one Corporal states that all 5 packets contained white substances. However, the evidence of a Sergeant says that one of the 6 packets had no substances in it.
The Sergeant was not able to explain under cross-examination why one plastic packet contained no substances. No evidence has been adduced by the prosecution to explain this discrepancy.
Also the alleged inconsistency with the form in which the packets were received and the alleged inconsistency in the exhibits produced.
The Defence in their motion 14-page motion also cited the alleged inconsistency in the grams of the substances tested.
Su’a-Mailo questions the differences in the weight of the substances and there has not been any evidence from the prosecution to clarify or clear this discrepancy.
“In the absence of such evidence, the Defence submits this raises a doubt as to either the accuracy of what was tested.”
The Defence questions that if items are missing or not recorded in the Property Seizure Record and there are no proper documentation of the items handed over to the Chain of Custody how can it be certain that these are the same items if they are missing.
Another issue is the custody of the firearms and ammunition as the court will note vastly differ as the prosecution had provided documents to this effect and had gone to lengths to explain the process for storage and to ensure that the chain of custody of the firearms and ammunition was intact.
“This however is vastly different from the other exhibits and in particular the 5 plastic packets. “The fact that there are other police officers who have access to where the exhibits were stored on the night of Tuesday 28 December 2021 to the morning of Wednesday 28 December 2021 leaves a considerable gap in the chain of custody.
“There was no evidence as to how the exhibits were stored in [Head of CID’s] office except that they were stored there overnight.”
Defense concluded in their motion the premise of this submission is based on the chain of custody and the inherent weaknesses in the prosecution case.
“It is our respectful submission that Prosecution has failed to an essential element of the case. Thus, it is our submission that there is no case to answer.
“It is the Prosecutions duty to prove the charges beyond a reasonable doubt. However, in this case, the standard of proof required by the law could not be attained.
“Thus, we humbly ask this Honorable Court for the accused to be acquitted as there is no case to answer,” concluded the motion.
